E.C. Bowman & Son Co. v. Hern

• Citation: 239 Mass. 200,131 N.E. 334
• Parties: E. C. BOWMAN & SON CO. v. HERN et al.
• Decision Date: 03 June 1921
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

239 Mass. 200

131 N.E. 334

E. C. BOWMAN & SON CO.

v.HERN et al.

Supreme Judicial Court of Massachusetts, Middlesex.

June 3, 1921.

Appeal from Superior Court, Middlesex County; Frederick Lawton, Judge.

Suit by the E. C. Bowman & Son Company against Nathalie C. Hern and others. From a decree dismissing the bill, plaintiff appeals. Affirmed.

The bill alleged that the defendant Nathalie Hern was the record owner of three described parcels of land, that two of such parcels were purchased by her husband, also a defendant, in her name and the name of a third person with money belonging to plaintiffs, that the husband had paid large sums of money for the improvement and benefit of a third parcel and paid money belonging to plaintiff on a mortgage on such land, that the husband and wife had given another defendant a mortgage on all of the property, and that he took the mortgage with notice of the fraud on plaintiff's rights. It asked a decree that the two parcels were plaintiff's property and that the defendant Nathalie Hern owed plaintiff the amounts expended on the third parcel and that the defendant mortgagee be enjoined from foreclosing his mortgage. The answer denied the allegations concerning the use of plaintiff's money in the purchase and improvement of the property and alleged that all the matters set forth were in issue and decided in a prior suit.Harvey H. Pratt, of Boston, for appellant.

Albion L. Millan, of Boston, for appellees.

JENNEY, J.

The plaintiff seeks to impose what is in its ultimate analysis a trust upon two parcels of land in Woburn which are the second and third parcels described in the bill. It bases its claim upon the finding of the master that the defendant John J. Hern received about $20,000 belonging to it for the purpose of use for its benefit, and upon the further finding that said Hern wrongfully used a part of the money in the purchase of this land, causing title to be taken in the name of his wife, the defendant C. Nathalie Hern, who paid nothing for it. On these facts the plaintiff was entitled in equity to a lien upon the property in the nature of a resulting trust; but the amount for which it would be entitled to establish such lien is not stated in the report. Bresnihan v. Sheehan, 125 Mass. 11;National Mahaiwe Bank v. Barry, 125 Mass. 20;McGivney v. McGivney, 142 Mass. 156, 7 N. E. 721;Moore v. Stinson, 144 Mass. 594, 12 N. E. 410.

It is assumed but need not be decided that, apart from the effect of a prior bill in equity between the same parties, the plaintiff would be entitled to a decree not only as against Mr. and Mrs. Hern, but against Albion L. Millan, who is a mortgagee.

‘All the papers of record’ in the prior case were in evidence before the master and made by reference a part of his report. His findings, so far as based solely thereon, however, are not conclusive, but were subject to review in the Superior Court and their correctness may be here considered. As to these, this court stands in the position of the master. Harvey-Watts Co. v. Worcester Umbrella Co., 193 Mass. 138, 78 N. E. 886;Glover v. Waltham Laundry Co., 235 Mass. 330, and cases collected at page 334, 127 N. E. 420, at page 421.

The bill in the first suit was by the same plaintiff against John J. Hern and other defendants, and by amendment against his wife. It alleges that Charles B. Bowman, a defendant, wholly without authority paid over approximately $23,400, the plaintiff's property, to John J. Hern who took with notice, and that said Hern has fraudulently converted said money to his own use in violation of the plaintiff's rights. It is conceded that the amount alleged to be wrongfully appropriated is that referred to in the master's report in the present suit. The first bill further alleges that John J. Hern ‘with intent to avoid attachment * * * and pursuant to his scheme to defraud complainant, and the creditors of said corporation * * * has invested a large part of said sum so paid to him in certain real estate standing in his name and also in certain real estate in the name of his wife * * * C. Nathalie Hern all of which real estate is situated in said Woburn,’ and further that ‘the plaintiff is informed and believes and therefore avers that * * * [John J.] Hern had practically no funds of his own with which to repay said sum’ outside of property described in the paragraph in the bill which contains the allegations as to real estate standing in his own name and in that of his wife. The prayers of the bill include one for general relief. The defendant joined issue. On this bill the plaintiff was entitled to relief of the character warranted by the frame of the bill upon the establishment of the allegations of fact therein contained. Eastern Bridge & Structural Co. v. Worcester Auditorium Co., 216 Mass. 426, 428, 103 N. E. 913;Briggs v. Sanford, 219 Mass. 572, 107 N. E. 436;Cole v. Wells, 224 Mass. 504, 514, 113 N. E. 189.

The report of the master to whom the first case was referred was confirmed by consent. Its confirmation established the findings made therein so far as they were relevant to the issues in suit; and upon the entry of a final decree they became conclusive. C. A. Briggs Co. v. National Wafer Co., 215 Mass. 100, 108, 102 N. E. 87, Ann. Cas. 1914C, 926. As to the matters pertinent to the present inquiry, he reported that the defendant Bowman ‘in his capacity as president and treasurer of the corporation, but without the formal act or sanction of either the stockholders or directors, but with the knowledge of at least a majority of the directors, authorized the defendant Hern to adjust and settle the...